By Alfred Miller, The State Journal
The Finance and Administration Cabinet is hauling a State Journal reporter into court in an effort to overturn the attorney general’s decision last month that a state committee is subject to the Kentucky Open Meetings Act.
The committee in question is specifically charged with selecting a developer to demolish and replace the Capital Plaza Tower.
The State Journal filed a formal appeal with the Attorney General’s Office in September after the newspaper’s repeated requests for copies of meeting schedules, minutes and other records identifying members of the Capital Plaza redevelopment project’s Built-to-Suit Selection Committee were denied. The subsequent decision, signed by Attorney General Andy Beshear and Assistant Attorney General Matt James, said, “Finance does not provide any valid legal reason for the Committee not to comply with the Open Meetings Act.”
But in “Finance and Administration Cabinet v. Alfred Miller,” filed Nov. 3, the cabinet argues that an “overbroad interpretation” of the Open Meetings Act could “undermine the confidentiality of the procurement process by exposing evaluation team members to great risk of improper contact, lobbying, and public opinion pressure, especially when a procurement is the subject of strong community opinions.”
“Upon the award of any public solicitation, the Finance and Administration Cabinet has always maintained a longstanding practice of releasing almost all records related to the award, inclusive of all bids, composition of any evaluation team, bid score, and the final terms agreed to,” writes cabinet lawyer Cary Bishop.
Director of the Bluegrass Institute’s Center for Open Government Amye Bensenhaver, who is representing The State Journal, said the cabinet’s argument runs counter to her center’s philosophy that “sunlight is the best disinfectant.”
“They’re essentially arguing that darkness is the best disinfectant, which is inimical and contrary in every respect to the Open Meetings Act,” Bensenhaver said.
She said the attorney general’s decision simply exposes the cabinet to the level of public scrutiny that its own statutes require.
Bensenhaver also objects to the Finance Cabinet’s repeated use of the word “formalities” to describe the Open Meetings Act in its petition.
“The State Journal denies that the provisions of the Open Meetings Act are ‘formalities’ and affirmatively states that the provisions of the Act are statutory enactments and legal requirements,” Bensenhaver writes in The State Journal’s response, which will be filed Wednesday.
Before joining the Bluegrass Institute’s new watchdog for transparency in state and local government, Bensenhaver spent 25 years as an assistant attorney general, writing nearly 2,000 legal opinions on open-meetings and open-records questions.
Earlier this month, the eight-person Built-to-Suit Selection Committee named developer-contractor team CRM/D.W. Wilburn as its pick to demolish the Capital Plaza Tower, the Frankfort Convention Center, two plaza-area parking garages, elevated plaza and plaza infrastructure, Fountain Place Shops, Wilkinson Boulevard offices, the elevated overpasses on Clinton and Mero Streets and the cooling towers on Wilkinson Boulevard.
Afterward, CRM/D.W. Wilburn will design, build, finance and operate a 385,500-square-foot, 1,500-employee office building as well as 1,206-space parking structure in a so-called “built-to-suit” deal, a type of public-private partnership. The developer will also be responsible for improvements to the Wilkinson Boulevard pedestrian bridge, the Capital Plaza Hotel façade and the YMCA parking garage’s Clinton Street façade.
The property is set to be turned over to CRM/D.W. Wilburn “on or about” Dec. 13, the Finance Cabinet says.